50 Predictions: Medical Malpractice

Published 1 September 2015

Making predictions about the future of the insurance market is not for the faint-hearted. Our experts have boldly looked ahead at the challenges you may face over the next year and produced 50 focused predictions.

Increase in claims around treatment consent as every patient is different

The Supreme Court decision in Montgomery v Lanarkshire Health Board is likely to result in an increasing number of claims, but it need not be seen as a fundamental change to the law around consent.

In response to the question about how much information patients need to be given prior to undergoing a course of treatment, it was held that doctors are obliged to discuss not just the risks that they would expect most patients to need to know about, but also the risks that would be important to that particular patient. As patients become more involved in making decisions, so doctors are under a greater responsibility to ensure that patients understand the risks posed by a course of treatment.

Pre-Action Protocol will further front-load clinical dispute costs

The further steps in the new Pre-Action Protocol for the Resolution of Clinical Disputes are likely to increase the front-loading of costs as parties make more and earlier use of expert evidence. There are two key changes. First, if supportive expert evidence has been obtained, it should be indicated in the Letter of Response, along with the expert’s discipline. Second, after the Letter of Response the parties must take stock and co-operate to draw up a list of issues in dispute. A key exercise will be for defendant firms to monitor the appetite of the courts to visit sanctions on non-compliant claimants and their advisers. Past experience has not been universally favourable.

Part 36 will play an even greater role as the defence toolkit diminishes

There will inevitably be a raft of cases clarifying the redraft of Part 36 as this already complex area of procedure assumes ever greater tactical importance. Qualified one-way costs shifting was the price for the abolition of recoverable ATE premiums (save for the new exception for those covering experts’ fees), but its true cost continues to be felt. Increasing numbers of unmeritorious claims are being brought. Most fall just below the strike-out threshold and do not provide adequate cause for a court to conclude that they are based on dishonesty. So, Part 36 offers are the only effective means of putting claimants in such cases under pressure. Logically, if the Pre-Action Protocol is properly used and enforced then unmeritorious claims should fall away, but that will mean concerted policing by an already overstretched court system.

Key developments in 2014/15

• Billett v Ministry of Defence
• Knauer v Ministry of Justice
• Montgomery v Lanarkshire Health Board
• Procedure